UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JACK HAFNER,

Plaintiff,

 Civil Action 2:11-cv-00669

v. Judge James L. Graham

 Magistrate Judge E.A. Preston Deavers

K. RUMER, et al.,

 

Defendant.

REPORT AND RECOMMENDATION

This matter is before the Court for consideration of Defendants’ Motion to Dismiss for

Failure to Prosecute. (ECF No. 12.) For the following reasons, it is RECOMMENDED that the

Court GRANT Defendants’ Motion and DISMISS Plaintiff’s claims with prejudice.

Plaintiff brought this action in July 2011, alleging that Defendants were deliberately

indifferent to his serious medical needs. The record reflects that Plaintiff was released from

prison on February 12, 2012. Despite his release, Plaintiff has failed to inform the Court or

Defendants of his current address. Consequently, on March 23, 2012, Defendants moved to

dismiss Plaintiff’s action for failure to prosecute pursuant to Federal Rule of Civil Procedure

41(b).

In light of Defendants’ Motion, the Court issued an Order on March 26, 2012 directing

Plaintiff to inform the Court of his current address and show cause why this case should not be

dismissed for failure to prosecute within fourteen (14) days. The Court cautioned Plaintiff that

failure to respond would result in dismissal of Plaintiff’s action with prejudice. The Clerk

mailed a copy of the Order to Plaintiff at his last known address at the London Correctional

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Institution. Although this mailing was returned as undeliverable, the return contained a

handwritten address. The record reflects that the Clerk forwarded a copy of the Court’s March

26, 2012 to Plaintiff at this handwritten address on or around April 9, 2012. As of the date of

this Report and Recommendation, Plaintiff has not responded to Defendants’ Motion to Dismiss

or the Court’s March 26, 2012 Order.

The Court’s inherent authority to dismiss a plaintiff's action with prejudice because of his

failure to prosecute or comply with rules or court orders is expressly recognized in Federal Rule

of Civil Procedure 41(b), which provides in pertinent part: “If the plaintiff fails to prosecute or

comply with these rules or a court order, a defendant may move to dismiss the action or any

claim against it.” Fed.R.Civ.P. 41(b). “This measure is available to the district court as a tool to

effect management of its docket and avoidance of unnecessary burdens on the tax-supported

courts and opposing parties.” Knoll v. AT & T, 176 F.3d 359, 363 (6th Cir. 1999) (internal

quotations omitted).

Plaintiff has an obligation to be diligent in prosecuting his case, which requires Plaintiff

to regularly check the docket and to apprise the Court of any changes in his contact information. 

See, e.g., Barber v. Runon, No. 93-6318, 1994 WL 163765, at *1 (6th Cir. May 2, 1994) (noting

that the plaintiff “had an affirmative duty to supply the court with notice of any and all changes

in her address”); Walker v. Cognis Oleo Chem., LLC, No. 1:07cv289, 2010 WL 717275, at *1

(S.D. Ohio Feb. 26, 2010) (“By failing to keep the Court apprised of his current address, Plaintiff

demonstrates a lack of prosecution of his action.”). Additionally, the United States Court of

Appeals for the Sixth Circuit has held “while pro se litigants may be entitled to some latitude

when dealing with sophisticated legal issues, acknowledging their lack of formal training, there

is no cause for extending this margin to straightforward procedural requirements that a layperson

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can comprehend as easily as a lawyer.” Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991).

In this case, the undersigned finds dismissal for failure prosecute to be appropriate. Since

his release from prisoner, Plaintiff has failed to inform the Court of his address. He has also

failed to respond to Defendants’ Motion to Dismiss and this Court’s March 26, 2012 Order. 

Furthermore, the Court warned Plaintiff, to the extent possible, that failure to respond would

result in dismissal. Plaintiff’s failure to act under these circumstances suggests that he no longer

intends to proceed with this action. Accordingly, it is Recommended that the Court GRANT

Defendants’ Motion Dismiss for Failure to Prosecute (ECF No. 12.) and DISMISS Plaintiff’s

claims with prejudice.

The Clerk is DIRECTED to mail a copy of this Order to Plaintiff at 6996 Clifton Ave.,

Russellville, Ohio, 45168.

 If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

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defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: April 25, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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